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Archive for September, 2012

In one of the most noteworthy and actually entertaining judicial campaign ads, the cast of The West Wing reunited to support Bridget Mary McCormack for the Michigan Supreme Court. The ad also offers an important announcement that transcends McCormack’s campaign: because voters frequently and reflexively vote straight “R” or “D” (which is one of the reasons why the concept of popular judicial election can be problematic), those voters are, perhaps inadvertently, not voting at all on the non-partisan portion of their ballots. Many states, including Michigan, use non-partisan judicial elections. Here is the ad:

The ABA’s standing committees on ethics and discipline are considering changes to the disqualification rule (2.11) of the Model Code of Judicial Conduct in light of Caperton and the problems of judicial campaign contributions and expenditures. The possible revisions are pursuant to Resolution 107, which reads in relevant part:

That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.

The committees have released their second draft of the proposed rule change, which omits several restrictions proposed in the first draft. In response, Cindy Gray and the American Judicature Society proposed a stronger and more comprehensive rule in several respects. That rule can be found on pages 18-19 of this document, which also contains the other commentary on the second draft. The committees have kindly decided to post another draft for comment before the proposed rule goes to the House of Delegates next year.

UPDATE: The third draft is available here. Comments are due by February 22, 2013.

Prof. Michele Benedetto Neitz (Golden Gate) has posted this insightful essay on judges’ implicit socioeconomic bias. One of the essay’s motivators was Chief Judge Kozinski’s recent dissent from a denial of rehearing, in which he in effect accused the panel of socioeconomic bias. See United States v. Pineda-Moreno (implying that the panel drove BMWs and engaged in “unselfconscious cultural elitism”). Prof. Benedetto Neitz’s work can be viewed here, and the abstract follows:

Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges. This elitism can manifest as implicit socioeconomic bias.

Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench. The article explains that socioeconomic bias may be more obscure than other forms of bias, but its impact on judicial decision-making processes can create very real harm for disadvantaged populations. The article reviews social science studies confirming that implicit bias can be prevalent even in people who profess to hold no explicit prejudices. Thus, even those judges who believe their wealthy backgrounds play no role in their judicial deliberations may be influenced by implicit socioeconomic bias. The article verifies the existence of implicit socioeconomic bias on the part of judges through examination of recent Fourth Amendment and child custody cases. These cases reveal that judges can and do favor wealthy litigants over those living in poverty, with significant negative consequences for low-income people.

The article contends that the ABA Model Code of Judicial Conduct (the “Code”), the document designed to regulate the behavior of judges, fails to effectively eliminate implicit socioeconomic bias. The article recommends innovative revisions designed to strengthen the Code’s prohibition against bias, and suggests improvements to judicial training materials in this context. These changes will serve to increase judicial awareness of the potential for implicit socioeconomic bias in their judicial decisions, and will bring this issue to the forefront of the judicial agenda.

Many readers are likely familiar with the Shalom Rubashkin case, which is now the subject of a short documentary. The case involves many fascinating and frightening details, but of particular relevance are the ex parte contacts: the chief judge met for months with law enforcement planning the raid of Rubashkin’s business. The judge did not disclose the extent of those planning sessions to the defendant or defense counsel; the contacts were instead revealed through a later public records request. Ethics Experts Steve Gillers and Mark Harrison submitted affidavits indicating that both the prosecutors and the judge misstepped ethically. The Supreme Court will soon consider whether to grant cert (it should), in a petition filed by Paul Clement. The new documentary follows:

Additionally, some recent press about the film and the case can be viewed here.